Hilary Smith-milne V. John Lewis Langler
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Derek C.W. Pyle |
| Court | Sheriff Court |
| Date | 12 March 2013 |
| Docket Number | F140/12 |
| Published date | 12 March 2013 |
SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN
F140/12
JUDGMENTby
SHERIFF PRINCIPAL DEREK C W PYLE
in causa
HILARY SMITH-MILNE, residing at 2 Nigg Way, Aberdeen
Respondent
against
JOHN LEWIS LANGLER, residing at 8 Nigg Way, Aberdeen
Appellant
Aberdeen, 12 March 2013
The Sheriff Principal, having resumed consideration of the cause, Allows the appeal in respect of the joint motion of the parties to exclude from probation the averments contained in article 3 of condescendence and answer 3 and so Excludes said averments; quoad ultra Refuses the appeal; Finds the appellant liable in the expenses of the appeal and Remits an account thereof to the auditor of court to tax and to report; Certifies the appeal as suitable for the employment of junior counsel.
Introduction
This appeal follows the decision of the sheriff to repel the appellant's preliminary plea-in-law after a debate in which the appellant sought to exclude from probation certain of the respondent's averments. The appeal concerns the construction of the Family Law (Scotland) Act 2006 in respect of the rights of cohabitants.
In 1995 the parties met and began to live together as if they were husband and wife. The relationship lasted until 2011. For that period they were "cohabitants" within the meaning of Section 25 of the Act. The respondent now seeks a capital sum in terms of Section 28(2)(a) of the Act.
The Pleadings
In article 4 of condescendence, the respondent makes certain averments about the period of the cohabitation. I do not find it necessary to repeat them here ad longum. Suffice it to say, the respondent avers that the appellant had little by way of capital when the parties first met. He did however have his interest in a business which he was running at that time. The respondent makes detailed averments about the various contributions, both financial and otherwise, she made to the relationship between the parties. In particular, she avers that (a) on the parties jointly purchasing a home, she paid for its decoration and supplied or paid for the furniture and some other contents, as well as half of the monthly mortgage instalments; (b) she kept the parties' home and garden and cooked, washed, cleaned and shopped for the appellant, as well as carrying out DIY and maintenance of the property; (c) she looked after her son who was assumed by the appellant as a child of the relationship and alone paid for childcare; (d) she paid for the entire cost of food and most of the utilities; and (e) she sold her own house and applied the net proceeds to supporting the parties' family life. The respondent then goes on to aver that when the parties commenced cohabitation she was employed as a chartered quality professional and for three years from 1996 she was employed as a stakeholder manager in an oil company. In 1999, she was persuaded by the appellant to work for his company. In doing so, she took a drop in salary. She avers that her contribution to the appellant's business greatly enhanced its value and that her efforts greatly exceeded the level of her salary. The appellant eventually sold the business for £6 million. The respondent was made redundant and received £10,000 as compensation. Thereafter she continued to pay half of the mortgage and met the whole cost of food and utilities, with the result that she soon exhausted her compensation and also incurred credit card debts, this being despite the appellant now being a multi-millionaire. The respondent also avers that she advanced the appellant's career by attending functions with him in his role as Deputy Lord Lieutenant of Aberdeen, by attending social events as his partner and by visiting Kazakhstan to support him in his role as honorary consul. Moreover, she visited there on one occasion on her own to develop a proposed vocational training model for industry. Finally, she avers that the appellant is a diabetic and she had to nurse him from time to time.
In article 5 of condescendence the respondent avers that by reason of the above contributions the appellant was able to concentrate on developing his career and business interests and has substantially increased his wealth and earning capacity over the cohabitation period. She then goes on to aver in detail the respondent's assets as at the date of cessation of the relationship. She estimates that his personal wealth is in excess of £11 million. She seeks payment of a capital sum of £600,000.
Finally, the respondent avers in article 7 of condescendence that in the foregoing circumstances the appellant has derived economic advantage from her contributions and that she, in turn, has suffered economic disadvantage in the interests of the appellant.
Section 28 - Discussion
Section 28 of the Family Law (Scotland) Act 2006 provides:
"(1) Subsection (2) applies where cohabitants cease to cohabit otherwise than by reason of
the death of one (or both) of them.
(2) On the application of a cohabitant (the "applicant"), the appropriate court may, after
having regard to the matters mentioned in subsection (3)-
(a) make an order requiring the other cohabitant (the "defender") to pay a capital sum
of an amount specified in the order to the applicant...
(3) Those matters are-
(a) whether (and, if so, to what extent) the defender has derived economic advantage
from contributions made by the applicant; and
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